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Default Judgment

Military service members have rights under the Servicemembers Civil Relief Act that protect them from a default judgment being entered. Also, if a default judgment has been entered without following the Servicemembers Civil Relief Act, the service member can ask that the judgment be set aside. For more information, see our webpage on Default Judgments.

Stays

A stay means that nothing will happen in the case until the stay is lifted. A military service member, whether plaintiff or defendant, may ask at any point in the proceedings that their civil case be stayed. The Servicemembers Civil Relief Act does not apply in criminal cases, including infractions.

A service member on active duty (including a reservist or National Guard member called to active duty) can ask that their civil case be stayed for as long as military service materially affects their ability to appear.

If the service member has defaulted by not answering the complaint, the judge will appoint a lawyer who will try to contact the service member to determine their wishes. There is an automatic 90-day stay for this process.

If military service materially affects a service member's ability to appear, the service member or the legal representative can ask for a further stay, explaining why military service materially affects the service member's ability to appear, and include a letter from the commanding officer stating that the service member's military duty prevents appearance and that leave is not authorized. The further stay must be at least 90 days and may be for as long as military service materially affects the service member's ability to appear. The motion for a stay does not submit the service member to the personal jurisdiction of the court and does not waive any defense or right that the service member may have.

Even if the service member is not in default and the lawsuit is well along, the service member may ask for a stay. A service member's circumstances might change so that, while military service did not materially affect the service member's ability to appear earlier in the case, it might do so later. The service member can ask for the stay at any point in the proceedings, even after judgment.

If the judge decides that military service does not materially affect the ability to appear, the case can proceed even though the service member is on active duty. But the judge must appoint a lawyer for the service member if the service member does not have one.

The law does not define "materially affect." It does not necessarily require overseas deployment, but it does require facts that show the service member would be hindered in presenting their case.

The other party has the right to oppose a motion for a stay. The judge will decide whether military service materially affects the service member's ability to appear.

Legal Representative

A person can always represent themselves. Usually, if a person is represented by someone else, that other person must be a lawyer. A military service member can be represented by a lawyer or by someone with "Power of Attorney." Servicemembers Civil Relief Act, 50 U.S.C. App. Section 519. For more information, please see the Hill Air Force Base Legal Assistance Division (hill.af.mil) webpage.

Volunteer Lawyers

Several Utah lawyers have volunteered to be appointed by the court to provide limited legal help to service members facing a default judgment. The judges and staff of the Utah courts thank you for your service. The scope of representation includes trying to find and contact the service member, advising them of their option to ask for a stay or waive their rights, and filing the documents necessary to exercise the option chosen. For more information and to volunteer, see our webpage on Service Member Attorney Volunteers.